A.I.S. Cheema, J.
1. These appeals have been filed by original accused Nos. 1 and 3 respectively. Both of them were charged along with accused no.2 Govardhanlal Shriramdas Sachdeva, the father of original accused no.1 Bhupendra. Accused no.2 Govardhanlal came to be acquitted by 2nd Additional Sessions Judge, Aurangabad of offence punishable under Sections 498A, 304-B of the Indian Penal Code, 1860 (âIPCâ in brief). Accused No.1 Bhupendra and accused No. 3 Rupindar were convicted of offence punishable under Section 302 of IPC and sentenced to suffer imprisonment for life. Accused No.1 Bhupendra was convicted under Section 498A of IPC and sentenced to suffer rigorous imprisonment for one year. Accused No.3 Rupindar came to be convicted under Section 114 of IPC and sentenced to suffer rigorous imprisonment for one year. Sentences of fine of Rs. 1,000/- and in default, to suffer rigorous imprisonment for six months were also passed under Sections 302, 498A and 114 of IPC. Accused No.1 Bhupendra came to be acquitted as regards offence punishable under Section 304B of IPC, which was also part of the charge.
Accused Nos. 1 and 3, being aggrieved by the conviction and sentences passed against them, have preferred these appeals.
Case of Prosecution
2. The case of prosecution as brought before the trial Court, in brief, is as under:
(a) PW-1 Akbar Ali has a hotel known as âShangrilaâ opposite S.T. Bus stand at Aurangabad. Accused No.1 Bhupendra along with his wife Shashibala (now deceased) had checked in at the hotel in Room no. 18 along with accused no.3. In the night between 17.12.1993-18.12.1993 at 4.00-4.30 hours PW-7 Receptionist Vijaysingh Rajput phone called PW-1 owner Akbar Ali that a girl had fallen from Room No.18 through the window and he should come. The room was on âDusara Malaâ i.e. First Floor of hotel. Shashibala, the wife of accused Bhupendra was reported to have fallen on the ground and died. Akbar Ali sent his son to the Police and reaching the spot saw the situation. Police came to the spot. Shashibala was taken to GHATI hospital at Aurangabad by Akbar Ali accompanied by his son, accused no.1 and the constable. At the hospital, Shashibala was declared dead.
(b) In the morning at about 8 a.m. of 18.12.1993, accused No.1 Bhupendra Sachdeva filed Accidental Death report (Exhibit 89) before PW-6 Head Constable Vasant Dhole at Police Station Kranti Chowk.
Accidental Death Report â
In the Accidental Death Report registered at serial number 71/1993, accused No.1 Bhupendra informed that he had got married to Shashibala, daughter of Omprakash Sakhuja on 18.11.1993 at Delhi and he alongwith his wife Shashibala had started for honeymoon on 07.12.1993 and by Goa Express reached Manmad on 08.12.1993 so as to come to Aurangabad. At Manmad, he was received by accused No. 3 Rupindar, who is deemed sister of accused no.1 Bhupendra. They checked in room No. 18 of hotel Shangrila on 08.12.1993. On 17.12.1993, he alongwith his wife and Rupindar (accused No.3), friend Mukesh and Sanjay went to Elora and came back at about 10 p.m. They had used two Scooters and one Motorcycle and had food but had not consumed any intoxicants. In the night at about 12.45 a.m. Bhupendra came back from walk to the room. At that time, his wife Shashibala and accused no.3 Rupindar, the deemed sister, were sleeping on the same bed and he also went and slept. He slept near the wall, then his wife and then his deemed sister. Sometime in the night he saw his wife Shashibala strolling in âVarandahâ and when he asked, she said that she is feeling giddy and so is strolling. He told her that it is very cold outside and so she come inside. She came inside but did not sleep. The doors and windows were closed as outside it was very cold. As he had headache, he applied balm and went to sleep. Later on he heard some thud sound and when he got up, he saw that his wife Shashibala was not there. Door was closed from inside. He checked the bathroom but nobody was there. In the room he saw that window was open. He peeped down. His room was on the First Floor. Below he saw his wife Shashibala had fallen down. He ran down. From hotel people, he took the Receptionist and one more person and went out and saw his wife lying on the ground with her head bleeding. The hotel employees immediately called the owner of the hotel and in short while Police came. With the help of Police, he took his wife to GHATI hospital, but she was declared as dead.
(c) On registering Accidental Death report as above, PW-9 P.S.I. Salunke took up the enquiry. He went to the spot and did panchanama. While he was so enquiring in to the Accidental Death, PW11 P.S.I. Balaji Sontakke was directed to take over. PW-11 Balaji Sontakke also saw the spot and seized three glasses from the spot having remnants of coffee. He did the inquest panchanama and requested doctor to do the postmortem and also provide nail clippings of the deceased. He recorded some statements. In the evening of 18.12.1993, PW-12 P.I. Digambar took over the enquiry. He attached concerned documents from the hotel. He obtained nail clippings of accused no.1. The clothes of the deceased were collected. Omprakash, the father of deceased Shashibala was informed at Delhi. He came down to Aurangabad on 20.12.1993. The dead body was handed over to him and Shashibala was cremated at Aurangabad.
F.I.R.
(d) Omprakash Sakhuja, father of deceased then submitted F.I.R. Exhibit 56. The F.I.R., in brief mentions that Omprakash was a businessman at Laxminagar, Delhi and Shashibala was one of his children. Shashibala was âMangaliâ and he had put in news paper that he wanted a âMangaliâ boy. Accused No.2 Govardhanlal had also put in news paper that he wanted âMangaliâ girl for his âMangaliâ son. There was correspondence and the complainant alongwith one Trilokchand Sharma had gone to Modinagar, District Ghaziabad where accused Nos. 1 and 2 were residing and marriage came to be settled. F.I.R. gives details as to how about three months before marriage ceremony âRokaâ and âThakaâ came to be performed. F.I.R. mentions that accused No.2 Govardhanlal went to the brother-in-law of complainant, namely Roshanlal Sachdeva telling him that complainant Omprakash is rich person and so Roshanlal should help getting articles as per the list, which he had prepared. In the list in addition to articles like Fridge and T.V. Etc., there was demand for Car. Complainant Omprakash and Roshanlal declined such request for Car and accused No.2 Govardhanlal had left. Complainant Omprakash then contacted Gulati, son-in-law of accused No.2 and informed him about the demand and Gulati said that he will explain it to the accused No.2 Govardhanlal. Thereafter, sometimes accused no.1 Bhupendra was phone-calling the daughter of Omprakash. Complainant and his wife had gone to Modinagar and talked with accused no.1 Bhupendra and he said that his father will not ask anything about Car. Then there was ceremony âShagunâ on 16.11.1993 in which colour T.V., Fridge, Motorcycle, Washing Machine etc., were given as gifts. On 17.11.1993 there was ring ceremony and marriage took place on 18.11.1993. In the reception on 20.11.1993, the complainant had given gift articles as per the custom. As per programme on 21.11.1993, the couple were to come to girls place in the morning but came only in the evening at 6 p.m. and stayed till 7 p.m. At that time, the complainant found his daughter to be âNarajâ i.e. angry or unhappy. On that day, the complainant had asked accused No.1 to take remaining furniture but he said that his father will take. He did not take the articles. At the matrimonial place, Shashibala was being given trouble on the count that Car has not been given and so they will not take the rest of the articles and rather articles which have been given should be taken back. Getting frustrated Shashibala had phone called complainant Omprakash and told about her trouble. Complainant and his wife had then gone and explained to the in-laws as to why they were troubling their daughter. Accused no.2 repeated the demand and daughter of the complainant was crying. At that time, accused No.2 stated that your daughter is âBadchalanâ i.e. not of good character. Complainant made his daughter understand and came back. On 06.12.1993, accused No.2 Govardhanlal informed the complainant about his daughter going out of city for roaming and they should come and meet but complainant did not go as he was not happy. On 12.12.1993, Shashibala had rung up the wife of complainant from Aurangabad and told that Shashibala and her husband are staying in a hotel at Aurangabad and with them so called deemed sister of her husband was also staying. Suddenly, phone had got disconnected.
On 18.12.1993, around 11.00 hours Gulati, the son-in-law of accused No.2 Govardhanlal informed him that Shashibala had expired at Aurangabad. Complainant went to Modinagar and the fact was confirmed. Complainant started on 19.12.1993 from Delhi by Flight and reached at Aurangabad on 20.12.1993. He expressed doubt regarding the death of Shashibala. According to him, she could not have committed suicide and may have been forced to commit suicide by her husband. Complainant claimed that because of demand of Car, she was being illtreated. Thus the complaint was filed.
Police registered the Crime at No.366/1993 under Section 304B, 498A, 306 read with 34 of IPC on 20.12.1993 at 21.15 hours. Accused Nos. 1 and 2 came to be arrested on the same day at 21.30 hours. In the course of investigation, Police found that accused no.3 also was involved in the crime and moved the Magistrate to include Section 114 of IPC as the offence committed by accused no.3. Rest of the investigation was completed like sending seized articles to Chemical Analyzer as well as viscera and getting the report. Charge sheet came to be filed on 22.07.1994 against accused nos. 1 to 3.
3. Matter being Sessions triable, the same was committed to the Court of Sessions. Sessions Case No. 164/1994 came up for trial and on 04.01.1997 against accused Nos. 1 and 2 charge was framed under Sections 498A, 304B, both read with 34 of IPC and against accused no.3 Rupindar under Section 114 of IPC. Subsequently, additional charge was framed on 19th March, 1997 against the accused Nos. 1 and 3 under Section 302 read with 34 of IPC. Accused persons claimed to be not guilty. Prosecution brought on record the oral and documentary evidence. Trial Court after considering the evidence as well as defence and written statements filed by accused Nos. 1 and 3 pronounced the judgment as mentioned above.
Some admitted documents
4. The judgment of trial Court (para 12) and record shows that accused admitted the spot panchanama (Exhibit 14); Seizure panchanama of three glasses from the room concerned with remnants of coffee at the bottom (Exhibit 15); inquest panchanama (Exhibit 16); Seizure panchanama of clothes of deceased (Exhibit 17); provisional postmortem Report (Exhibit 18); Postmortem Report (Exhibit 19); admission form of accused No.3 Rupindar at Samata Darshan Womens Hostel (Exhibit 20); extract of entry from Register of Hotel âShangrilaâ (Exhibit 21) showing that accused no.1 had checked in on 08.12.1993 under his alias name âToniâ; extract of hotel Shangrila (Exhibit 22) showing address given of hostel of accused no.3 and customers signature as that of accused no.3; yet another extract of hotel (Exhibit 23) showing three persons as staying there; as well as Cash Memo of hotel Dwarika of Nashik (Exhibit 24).
Some admitted facts
5. The judgment of Trial Court (para 17) referred to arguments and evidence on record and observed that certain facts were not in dispute. It is not disputed that the accused no.1 is son of accused No.2 and that the marriage of accused No.1 took place with deceased Shashibala on 18.11.1993. At the time of incident in Room No.18 there were only accused no.1, deceased Shashibala and accused no.3. Shashibala died on 18.12.1993 in the early morning is also not disputed.
Trial Courts Findings
6. Trial Court had visited the spot and put its report at Exhibit 105. At the time of judgment, the Trial Court referred to the evidence as well as its report and firstly considered the fact if it could have been a case of accidental fall. It noticed that the window opened in three pieces with sliding glass and breadth of wall of the window was 11â and window was at a height of 310â from the floor. The Court concluded that probability of person accidentally falling from such window while leaning does not arise. It was observed that in the wall which was having 11â width there was Aluminum bracket with three sliding glasses fitted. The Aluminum bracket was in the center and it was not possible for a person to sit there. Thus, the Court ruled out accident. Then it considered whether Shashibala could have committed suicide or was it homicidal death. The Court considered the evidence of doctor where there was opinion of scuffle before death and found that evidence of doctor will have to be accepted that the death was homicidal. It was observed that the accidental death is ruled out and there was no circumstance to show that there could be case of suicide and the evidence was showing that it was homicidal death. The Court then considered as to who was responsible for the homicidal death and for that purpose considered certain circumstances. First circumstance considered was the phone call made by the deceased from Aurangabad that the accused no.1 is roaming around with a girl and address given in the hotel is fictitious and that she was not safe. It was observed that there was contradiction in the deposition of the complainant that he received such phone call as F.I.R. said that his wife had received the phone call. The Court observed that this evidence of complainant need not be read in isolation and other evidence on record does show that accused no.3 was admittedly residing in the same room alongwith accused no.1 and was through out with the couple and so information received by the complainant and his wife was not false. Second circumstance considered was that although the couple had come for honeymoon the accused no.3 was all the time with them and so there is doubt regarding true intentions of the accused no.1. The third circumstance considered was that the accused had not given any plausible explanation as to how Shashibala fell. Considering the evidence, the trial Court held the accused Nos. 1 and 3 guilty for causing homicidal death of Shashibala. The Court rejected the defence that if motive is not proved, the accused could not be held guilty. It was considered that the intention of accused nos. 1 and 3 was to cause death of Shashibala and so both of them were liable for murder. It has been observed that the body was pushed and thrown out of the window which led to death of Shashibala and intention of accused nos. 1 and 3 was to cause death. They were liable to be punished under Section 302 r/w 34 of IPC.
As regards Section 498A of IPC, trial Court considered the evidence of PW2 Omprakash Sakhuja, father of deceased and PW3 Roshanlal Sachdeva and found that although demand appears to have been there, harassment or ill-treatment on the count of demand was not proved and hence it was not established that there was harassment or ill-treatment for the demand and so accused no.2 could not be held guilty.
However, as regards accused no.1 Court observed that his act of keeping accused no.3 all the time with them, although accused no.1 and his wife had come for honeymoon amounted to cruelty withing the meaning of Section 498A of IPC and so accused no.1 was guilty under that provision. As regards accused no.3, the Court held that as she was not related to accused no.1 she could not be held guilty of offence under Section 498A of IPC but she was abettor for offence. As regards Section 304 B of the IPC, Court observed that in the present matter admittedly death took place within seven years and it was not in normal circumstance. It was proved that there was cruelty within the meaning of Section 498A of IPC but ingredients of Section 304B of IPC that cruelty has to be in connection with demand of dowry is not proved and so offence under Section 304B of IPC was not established. The Court referred to Section 107 of IPC regarding abetment and found accused no.3 guilty under Section 114 of IPC for abetment as regards offence under section 498A of IPC.
The Appeals filed
7. In appeal filed by accused no.1 he has challenged his conviction claiming that omissions and contradictions have not been considered; conviction is based only on assumptions and conjectures; there is no direct evidence against the appellant â accused; there was no motive; fact that relation of accused Nos. 1 and 3 was of brother and sister, has not been considered; the couple alongwith accused No.3 and other friends were going around happily, has not been considered; those persons who enjoyed alongwith accused Nos. 1 and 3 as well as other co-passengers residing in the hotel have not been examined; although there was no record of illicit relations between the accused Nos. 1 and 3, the conviction is based on the ground of presence of accused no.3, and, that the evidence of Dr. Jinturkar has not been properly appreciated. The evidence on record has not been properly appreciated. The investigation was faulty. No incriminating material was found in the Chemical Analyzers report against this accused. Appellant â Accused No.1 wants conviction to be set aside.
8. Appellant - Accused no.3 in her appeal has also raised similar grounds. She claimed that in the facts and circumstances of the case, it could not be suggested that there was any illicit intimacy between the accused no.1 and her and that the deceased either suspected and/or objected or disapproved the same. Her mere presence in the room at the spot of incident cannot be treated as incriminating so as to convict her. When Shashibala had fallen to the ground even this accused followed accused no.1 to the ground floor and to the spot where the body was lying. The conduct of both accused is material. Best evidence available has been suppressed by the prosecution. There was no evidence of scuffle or struggle between the couple on the fateful night. The evidence of doctor was not properly appreciated. She also wants that the sentence and conviction should be set aside.
Arguments
9. We have heard learned counsel for the accused and A.P.P. for State. It has been argued for the accused that there was no motive proved in the present matter. The case is based on circumstantial evidence. The case of prosecution that there was ill-treatment for demands has been disbelieved by the trial Court. The victim was sitting on the window and fell down accidentally. If accused no.1 wanted to kill his wife, he would not have unnecessarily kept accused no.3 present. There was no evidence of cries, beating or shouting though Receptionist and room boy were there below and in the neighbouring rooms, there were other passengers. The argument is that the evidence needs to be properly appreciated and that the evidence shows that it is a case of accidental fall and death. Trial Court relied on conjectures and presence of accused no.3 could not be faulted with as it is matter of choice of the couple if they wanted or not presence of third person.
Cruelty is not proved.
10. According to learned A.P.P. there is evidence to show that the marriage had sour taste due to demand of Car. There was evidence of subsequent conduct also which showed that there was problem regarding demands made. If the couple had come down for honeymoon, there was no reason for accused no.3 to all the time be with the couple and even sleep with them at night. Learned A.P.P. wanted to compare the A.D. Report Exhibit 89 given by accused no.1 with his statement Exhibit 106 to claim that although accused have a right to keep silent, in the set of facts like the present one, where somethings are exclusively in their knowledge, they have duty to explain. According to learned A.P.P., the deceased was well built and gap of window was hardly of one and a half feet and it was unlikely that person like Shashibala would accidentally fall from such window. According to learned A.P.P. it was uncomfortable to sit as there were four channels at the base and so it could not be a case of accident. The learned A.P.P. referred to the oral evidence as well as medical evidence to claim that offence has been duly established. According to her, presence of other girl like accused no.3 in honeymoon amounts to cruelty. She wants the judgment of the trial Court to be maintained.
Spot
11. In the present matter before appreciating the medical evidence, it is necessary to keep in view details of the spot.
(a) Spot panchanama was admitted by the defence at Exhibit 14. There is also evidence of PW-9 P.S.I. Arun Salunke who did the spot panchanama as well as PW-11 P.S.I. Balaji Sontakke who had visited the spot and from spot seized three glasses having remnants of coffee. (Written statement under Section 233(2) of Cr.P.C. of accused No.1 Exhibit 106 has claimed that in the night of 17th December at about 10 `O clock they had coffee in their room.) There is also report of spot inspection done by trial Court which is at Exhibit 105.
(b) Spot panchanama Exhibit 14 appears to have been recorded on 18.12.1993 between 8.10 a.m. to 8.50 a.m. The hotel Shangrila is opposite Central Bus stand. Room No. 18 was on first floor. The hotel is facing the Bus stand towards west. To the south of the hotel, there is some Green Palace. To the north and east, there are open spaces while road was to the west. The room had window facing north. Staircase from the floor concerned came down to a door opening towards south. Panchanama Exhibit 15 shows that on both sides of the room there were other rooms on east and west; and that âVarandahâ is to the south from which there were stairs to come down.
(c) Thus to the west of hotel there is a road and then Bus stand and to the south there was some structure and the northern and eastern sides of hotel had open space. Although, the hotel as per panchanama has Bus stand infront (i.e. to the west), the entry appears to be from south. Cross â examination of PW-7 Vijaysingh Rajput shows that from reception one had to go out towards North for 25 to reach the spot where body of deceased was lying.
(d) Spot panchanama shows that room concerned was of dimension of 15 X 12 and had attached toilet bathroom of 5 X 7. With the wall of the bathroom there was wooden cot of 7 X 6 with two mattresses covered by two white bed sheets. On the cot there were three blankets lying disorderly and two pillows. There was one blanket kept folded belonging to accused no.1. Panchanama noted other articles in the room alongwith three glasses having coffee remnants. There was little coffee at the bottom of glasses. Note of Suitcases, articles etc. of accused no.1 appears to have been taken. In the north-east corner at a height of 52â in the wall with the help of angle for portable T.V. wooden triangle plank had been fitted and a T.V. was there. In the northern wall there was window of 7 X 4 with sliding windows. The eastern side plank had been slided towards the west and there was space opening towards outside from the window of 16â X 39â as the gap. In front of this gap wooden plank of T.V. stand had come to the extent of 1. Open space to the north of the hotel was visible from the window. From window ground was 287â below. At 6 from the window towards the lower side there was âChajjaâ (Lintel) of window of ground floor. In the room, no incriminating articles were found.
Spot panchanama shows that on the ground the compound of the hotel towards northern side was examined where Shashibala had fallen and died. There was big pool of blood on the spot and upper layer of blood had dried. Pool of blood was at a distance of 1½ from the wall of the hotel and wire fencing was 5 away. On the angle of the wire also there was blood. Evidence of PW7 Vijaysingh Rajput shows that barbed wire fencing was of the length of 50 to 60 feet.
(e) The report of spot inspection at Exhibit 105 further shows that the window frame had sliding glass window of three pieces having total length of 6. Height of the window from base of room was 310â. The width of wall was about 11â with sliding glass exactly in the center. Below the window the Court noticed that there was âChajjaâ of about 1½ width over the window of ground floor room, which room was below the room no.18. It was noted that âChajjaâ was not flat but slightly curved and smooth. The Court went down to the spot where the deceased had fallen. The compound of this hotel was made of barbed wire, which was at a distance of 610â from the building wall. The barbed wires were connected with iron angles as pillars, which were embedded in the ground. This spot inspection was done by the learned Trial Court on 18.10.1997.
The judgment of the Trial Court (para 18) gives further insight of the spot. It has been observed that width of the wall in which the window was fixed was just 11â and was fixed exactly in the center with three sliding glasses.
Medical Evidence
12. Keeping the spot as above in view, from where according to the accused, Shashibala had accidentally fall and according to the prosecution she was murdered by accused nos. 1 and 3 being responsible for the fall, it would be appropriate to first refer to the medical evidence. Although, the inquest panchanama and postmortem report were admitted by the accused, the prosecution examined PW-4 Dr. Anil Jinturkar. His evidence is that he had conducted postmortem on 18.12.1993 between 5.20 p.m. to 6.20 p.m. and Dr. R.N. Kagne had assisted him. According to him, Shashibala was well built and well nourished and her height was 5 4½â. Rigor mortis was present and generalised. The scalp heirs were dense, black coloured combed and neatly tied at back but disorderly at the front and side portions. The heir was soiled with reddish blood and dried blood was seen on face at various places. Eyes were closed and there was evidence of black eye on either side. Mouth was partially open and tongue protruded with its tip firmly held in between teeth of upper and lower jaw. Blood was seen oozing from nostrils. Lips were bluish. Part of evidence of doctor regarding examination carried out by him needs to be reproduced. It reads:-
â2. On external examination I found
followinginjuries.
Injury No. 1: An obliquely placed reddish contusion over right frontal region 2â x 1â size.
Injury No.2: A transverly placed reddish contusion over forehead centrally, 2½â X 1â
Injury No.3: An oblique reddish contusion over left frontal region 1½â X 1â.
Injury No.4 : A triangular contused lacerated wound over frontoparietal region almost centrally 1/2â above injury no.2, 1â X 1â X 1/2â (sides of the triangle) X bone deep, fracture of underlying bones felt and seen, oozing of blood seen.
Injury No.5: An obliquely placed contused lacerated wound at ala of nose right side of size 1/2â 2½â.
Injury No.6: An oval reddish contusion at middle 1/3rd of nose, interior, 1/2â X 1/2â, fractures of nasal bones felt beneath.
Injury No.7: Multiple linear reddish abrasions i.e. scratches, obliquely placed at the left side of neck tapering at lower portion, these were 2â in length.
Injury No.8: Three crescentic abrasions over left side of neck, reddish of size 1/2â each, located one above other, free ends directed laterally and lower down towards left.
Injury No.9: Two oblique crescentic abrasions over the lower portion of left chin reddish 1/4â each, located side by side with free ends directed medially lower down.
Injury No.10: Two linear reddish scratches 1½â in length at left side of neck tapering medially.
Injury No. 11: Multiple bluish red contusions over antero-lateral aspect of left shoulder.
Injury No. 12: Multiple bluish red contusions at antero-lateral aspect of left arm at upper 1/3rd.
Injury No.13: Multiple oval bluish red contusions over left mammary region varying between 1â x 1/2â and 3/4â x 1/2â size.
Injury No.14: An oval bluish red contusion below left nipple, 1½â x 1â size.
Injury No.15: Multiple reddish abrasions at postero-lateral aspect of right elbow.
Injury No.16: Three obliquely placed linear reddish scratches at right forearm, middle 1/3rd, 2â in length each, tapering medially.
Injury No.17: Multiple irregular reddish scratches at right wrist, these were 1½â x 2â in length and variegated in direction.
Injury No.18: A rectangular contused lacerated wound at the medial aspect of left thigh middle 1/3rd portion exposing the underlying muscles and tissues, measuring 2½â x 2â x muscle deep, clotted blood noted within the wound.
Injury No.19 : Multiple irregular reddish abrasions over antero-lateral aspect of right knee.
Injury No.20: Oval bluish red contusion over right leg middle 1/3rd area 1½â x 1â size.
Injury No.21: An irregular reddish abrasion over the dorsum of right foot, reddish colour.
I also noticed depressed communated fracture of skull bones on both sides, fracture dislocation of C-1, C-2 and C-3 vertebrae felt and seen. All these injuries are antemortem in nature.
On internal examination, on examination of head I noticed reddish subgaleal haemorrhage at both frontal and parietal region. I also noticed depressed communated fracture of both frontal bones, parietal bones with minimal infiltration at fractured bony edges. There was also evidence of fracture of floora of both anterior craneal fossi with evidence of minimal infiltration of blood.
On examination of meninges I found that they were torned at both frontal regions irregularly. Brain showed irregular laceration at frontal lobes on either side and evidence of intracranial haemorrhages. Pons and medulla also showed laceration and haemorrhage.
On examination of Thorax I found that it was contused irregularly even upto subcutaneous tissues and muscles on left mammary region. Pleura was congested. Both lungs were pale in appearance. Pericardium was contused at places in patchy manner. Heart contracted, both the sides almost empty. An obliquely placed oval reddish pinkish contusion seen at right ventricle size 1â x 1/2â, subendocardial haemorrhage seen in Rt. Ventricular cavity, coronaries did not reveal any abnormality.
On examination of Abdomen I found that the abdominal walls was contused irregularly at various sites. The stomach was distended and contains 25 ml. of thick digested undistinguishable food mixed with liquid without any abnormal smell, mucosa was hyperemic.
Abdominal organs i.e. liver, spleen, kidney, pancreas were pale in appearance.
Uterus was normal.
On examination of spine and spinal cord on dissection I found that there was fracture of odontoid process and ring of atlas vertebrae, it was oblique fracture, fractured dislocation seen in between C-1 and C-2 as well as C-2 and C-3 vertebrae, minimal infiltration observed at the fractured sites. Small muscles of the neck were haemorrhagic, vertebral arteries were distorted, laceration and haemorrhages were noticed within the corresponding spinal cord segments.
I also preserved the routine viscera so also and nail clipping of fingers and blood samples of the victim.â
For appreciation it would be appropriate to refer to relevant injuries recorded as part of internal examination in column 20 of the postmortem report which are at Column No. 20(a), (f) and (g). They are as under:
20. Thorax:-
| (a) | Walls, ribs, cartilages. | Contused irregularly even up to subcutaneous tissue and muscles on left mammary region. |
| (f) | Pericardium | Contused at places in patchy manner. |
| (g) | Heart with weight | Heart contracted, both the sides almost empty. An obliquely placed over reddish pinkish contusion seen at right ventricle size 1â X 1/2â. Subendocarial haemerrhage seen in Rt. Ventricular cavity, coronaries did not reveal any abnormality. |
| Opinion as to the cause, probable cause of death. | Laceration of brain and spinal cord due to fractures of skull bones and cervical vertebrae with contusion of heart. |
| Associated findings | Multiple contusions and abrasions on body. Viscera preserved for Chemical Analysis. |
In reply Exhibit 75, doctor observed as follows as regards the associate findings:-
â1. The injuries mentioned in Associated findings are contusions and abrasions. The abrasions are mostly scratches, multiple in number located at various body area and variegated as regards their direction hence unlikely to be self inflicted. The contusions were also multiple in number located are left supermamary and mammary region as well as left shoulder and upper 1/3rd of left arm. Therefore it would be worthwhile to infer that this injuries are indicative of scuffle.
2. Abrasions i.e. the scraches appear to have been caused by the finger nails and the contusions by hard and blunt object or impact.
3. All the injuries mentioned in associated findings are antemortem in nature and they are fresh (i.e. recent just before death).â
Evidence of doctor is that this is case of homicidal death looking to the injuries on the left side of chest and internal injuries which were to the heart. According to him, even contusion of heart could also cause immediate death because of distortion in heart function.
Not a case of accident
13. In record there are photographs proved as those of accused No.1 and deceased Shashibala. The photographs were put up to PW-2 and he admitted seven photographs at Exhibit 58 to 64 as depicting the accused No.1 and his wife i.e. deceased Shashibala. Another photograph was admitted by PW-2 at Exhibit 67 to be of deceased Shashibala. If the evidence of PW-4 Dr. Jinturkar is kept in view that the dead body was of âwell built and well nourishedâ young female and these photographs are examined, (and particulars of the spot are visualized that the gap in the window after sliding planks to one side was remaining only of 1½ X 39â) it does not appear possible that such a healthy person, even if she was to sit in that uncomfortable gap of 1½ would accidentally fall down. Even if the person was to sit in such window and for any reason was to lose balance, natural conduct would be to try to hold on to anything which would help to prevent the fall. If Shashibala was sitting in such window and if accidentally was to lose balance, she would have caught other part of the window or portions of frame of sliding window. The spot panchanama did not reveal any such marks on the spot to show that person falling tried to save herself but could not. In such situation, in natural course the person would shriek, shout, call out, spread out hands while falling or whatever, but it would not be the mere `thud which accused No.1 claims to have heard.
14. It is apparent that the window concerned had in the center planks for sliding glass, it is unlikely that any person would sit on such uncomfortable base for long and that too in an extremely cold night and at such odd hours. Thus, Accidental Death Report filed by accused No.1 Exhibit 89 and the defence that Shashibala must have accidentally fallen from the window does not at all appeal to be a possibility. If accused no.1 had called Shashibala from âVarandahâ as it was very cold, it does not appeal that he would let the window be kept open. We do not find the argument of defence appealing that Shashibala was sitting in the window and accidentally may have fallen down.
The spot shows that 6 below the window there was âChajjaâ protruding to the extent of 1½. If it was an accidental fall, âChajjaâ would have been an obstruction to the fall and there would have been some marks on the âChajjaâ. The spot was shown by Accused No.1. The spot panchanama does not show that there were any marks of anybody falling, striking or, on way down rubbing against the âChajjaâ. Thus the defence that it was an accidental fall is rejected.
Nor a case of suicide
15. It is not the case of prosecution nor of the defence that Shashibala may have committed suicide. There is no material to suggest that mental condition of Shashibala was such that she may have committed suicide. The evidence on record also nowhere suggests that it was suicide. In the examination-in-chief of Dr. Jinturkar (PW-4) it was suggested to him that a person likely to commit suicide would stand on both feet and then jump. Doctor replied that generally it is true. Further questions were asked and doctor deposed that if a person was to jump, there would be injuries to the lower extremity and hips, but there was no fracture to the feet, legs, hips or pelvic or to the lower vertebra of fumure bone. This evidence of doctor brought on record by the prosecution to rule out suicide, does not appear to have been challenged in the cross examination. If a person was to sit in the window, as found in the present matter and allow herself to fall out head first, still âChajjaâ in the present matter must come as an obstruction. This needs to be stated as spot itself shows that pool of blood on the spot below was hardly at a distance of 2½ from the wall of hotel. If from this 2½, 1½ broad âChajjaâ is minus, the fall is surprisingly close to the building. Looking to present height, if a person was to jump or allow herself to fall head first it is unlikely that the person would fall so close to the building on the ground. For such reasons, possibility of suicide is also ruled out.
Culpable homicide
16. Now it is necessary to go back to the spot and the medical evidence to consider if the prosecution has proved that Shashibala suffered culpable homicide. The evidence of doctor as mentioned above was challenged in the cross examination. Accused to some extent were even unfair in suggesting bias and prejudice to the doctor who was just doing his job. There was no reason for doctor to be for the deceased or against the accused persons. Infact he had already finished the postmortem on 18.12.1993 itself and given opinion and the father of the deceased reached Aurangabad only on 20.12.1993. We have absolutely no reason to suspect the bonafides of this doctor, who was working as Associate Professor, Forensic Medicine Department, Government Medical College.
The evidence of doctor shows injuries to the head which clearly were due to fall. The medical evidence clearly shows that the head injuries suffered in the fall were sufficient in ordinary course of nature to cause death. The evidence of doctor is that the external injuries Nos. 13 and 14 correspond to internal injury no. 20 which have been recorded under column 20 âThoraxâ at sub column (a), (f) and (g). The evidence is that Shashibala had contusions over her left mammary region and there was oval bluish red contusion below left nipple. According to doctor, this could have been possible by fists or blows or due to hard impact. The evidence of doctor shows that by single fall all the injuries as found on the person of Shashibala were not likely unless some hindrance in the path comes and the body deviates while falling. In the cross examination of doctor, it was asked and he mentioned that injury nos.13 and 14 of column no.17 and injury mentioned in column no.20(a) are possible by fall âifâ the body comes in contact with wide surface, rough and uneven having oval projections. Doctor was then asked whether a lady standing with the elbow near a window, if she slips and falls down and while falling down her body comes in contact with projected part of wall and then she falls, whether in such circumstances such injuries are possible. The doctor mentioned that it is remotely possible, adding that, in such circumstances, there should have been evidence of sliding abrasions on the chest and stomach in addition to other injuries. Looking to such evidence of doctor, the accused cannot derive any benefit as neither the body nor the âChajjaâ appear to have had such sliding marks. We have already mentioned that the record does not show that there were any marks on the âChajjaâ below the window. Again if the person was to strike against âChajjaâ or scrape against âChajjaâ which was 1½ broad, the person would bounce to more distance and it is unlikely that the person would fall so close on the ground as is appearing in the present matter. The doctor was categorical that injury nos. 13 and 14 are not abrasions and it is not possible that all injuries could be caused if a person falls from window. Doctor insisted that especially injury Nos. 8, 9, 13 and 14 are not possible. The evidence is that there was localized finger nail injuries which could be seen in column no.17 as injury Nos. 7 and 8.
17. What appears from the evidence of doctor is that in addition to the injuries which Shashibala suffered due to fall, there were other injuries, which could not be associated with the single fall. The doctor is categorical that looking to the injuries on the left side of chest and internal injuries to the heart it was homicidal death. The doctor has deposed that contusion of heart could cause immediate death because of distortion in heart function. Thus, the injuries at Sr. Nos. 13 and 14 raise questions as to what was the condition of Shashibala when she came down two floors from the window. As the doctor has deposed that contusion of heart could also cause immediate death because of distortion in heart function, she may or may not have been in a condition to help herself when she came down from the window to the ground, in which fall she suffered injuries to her head and also had other injuries not associated to fall as recorded by the doctor. It is apparent that Shashibala had contusion of heart which could have been caused by even fist blows and she also suffered injuries in the fall. Evidence of doctor is that Shashibala had injuries indicating scuffle. We accept the evidence of doctor. Looking to medical and other evidence, we find that Shashibala suffered culpable homicide.
Was it murder?
18. Now the question is whether appellants â accused Nos. 1 and 3 are responsible for culpable homicide of Shashibala.
19. It has been argued by the learned counsel for the accused that no motive has been proved for the accused persons to murder Shashibala. Reliance is placed on the case of âState of U.P. V/s Babu Ramâ reported in AIR 2000 S.C. 1735. In para no.11 it was observed as follows:
â11. We are unable to concur with the legal proposition adumbrated in the impugned judgment that motive may not be very much material in cases depending on direct evidence whereas motive is material only when the case depends upon circumstantial evidence. There is no legal warrant for making such a hiatus in criminal cases as for the motive for committing the crime. Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogations that cannot be put in evidence by them due to the ban imposed by law.â
Keeping above in view facts of present matter need to be considered. There is evidence of PW-2 and PW-3 that when marriage was settled between the accused no.1 and Shashibala, demand was raised by accused no.2 for articles one of which was providing a Car. The evidence of PW-2 and PW-3 shows that the girl side was not ready to give car. There is evidence of PW-2 that subsequent to the marriage when Shashibala had come, she seemed to be unhappy. The evidence was discussed by learned Trial Court and it found that although the evidence of PW-2 and PW-3 shows that there was demand for articles but there was no sufficient evidence to prove that demand was coupled with any acts which were in the nature of harassment and ill-treatment for non-fulfillment of demands. It appears from the evidence that relatives intervened and the demand for Car was not insisted upon and marriage took place. The cross examination of PW-2 shows that even on the day of marriage, the marriage did not pass of peacefully and quarrel had taken place as accused no.2 was complaining regarding decoration and arrangements. The cross â examination also brought on record that there was displeasure at the time of marriage ceremony. F.I.R. Exhibit 56 also claims that due to such demands complainant was doubting death of his daughter.
20. Another glaring circumstance is the fact that there is ample evidence on record clearly showing, and which is not disputed that right from the time of 08.12.1993 when the couple reached Manmad till the incident, the accused No.3 was continuously with the couple. The statement of this accused under Section 313 of Criminal Procedure Code, 1973 and the evidence shows that on 08.12.1993 although the accused no.3 Rupindar was staying in Samta Darshan Womens Hostel, Aurangabad, she went to the city of Manmad to receive the couple and bring them to Aurangabad. They all then started staying at hotel Shangrila. From Aurangabad three of them visited Shirdi and Nashik and came back to Aurangabad. Of course, the accused claimed that at Aurangabad there were other friends with whom they went around to Elora, Daulatabad and Ajanta on two wheelers. However, the evidence of such other friends is not on record. The evidence of PW-1 Akbar Ali, the owner of the hotel and PW-7 Vijaysingh, the Receptionist shows that the accused with Shashibala were staying at hotel Shangrila. Three of them appeared to have been staying in the hotel in one room which had a double bed. Although in written statement Exhibit 106 and 107, the accused have tried to show that couple slept on the bed and accused no.3 slept on the floor taking blanket and pillow, the accidental death report Exhibit 89 filed by accused no.1 himself had mentioned that in the night concerned, all the three had slept on the same bed. The spot panchanama Exhibit 14 shows that at the concerned time in the room on the bed there were only two mattresses, two bed sheets on the bed and three blankets in disorderly manner and only two pillows. There was yet another personal blanket kept neatly folded in the room. Thus, although there were three persons, there were only two mattresses and two pillows. This, when the case of prosecution shows that accused no.1 had come down along with Shashibala to Aurangabad for honeymoon. The learned A.P.P. is rightly raising questions as to the intentions of accused Nos. 1 and 3.
21. Learned A.P.P. has submitted that such conduct was unusual. Even if the couple had come for honeymoon and accused No.3 was a local contact, it was no reason that she should all the time have been there, even in the nights when couple had come for honeymoon. The learned Advocate for the accused have tried to defend the same saying that it is personal choice and accused No.3 was deemed sister of accused no.1 and so there was nothing unusual. We do not agree with such proposition. This is quite unusual and in the circumstances of the present matter, where Shashibala appears to have suffered culpable homicide, we find this conduct suspicious. We find that the acts amounted to cruelty to Shashibala who was bride not even one month old being put to treatment of having third person young girl on the same bed.
22. PW-2 Omprakash deposed (in para 8) that after some days of accused no.1 and his daughter going out for enjoyment (he was referring to honeymoon) to Aurangabad, he received phone call from his daughter from Aurangabad and she told him that there is one more girl roaming alongwith them and accused no.1 is saying, she is his sister but she is not his sister. The complainant claimed that his daughter told him that she is being left alone and accused nos. 1 and 3 are roaming, and that, she was suspecting the relations between accused no. 1, and that girl (i.e. accused no.3). Complainant says that his daughter informed him that many boys visit accused no.1, and that, the address given in the hotel is fictitious and she was suspecting something, and that, she was not safe.
In cross examination of the complainant, he stated that he had received only one phone call and no other from his daughter from Aurangabad. He denied that phone call was received by his wife and claimed that it was received by him. Complainant was confronted with his F.I.R. Exhibit 56 where it was mentioned that on 12.12.1993 his daughter Shashibala had called up from Aurangabad was informed to him by his wife, and that, it was stated that Shashibala and her husband are staying in hotel at Aurangabad and with them a person deemed to be sister of the husband was also staying and before further conversation, phone got cut.
Thus it has been argued by the learned counsel for the accused that F.I.R. says that complainant got the information through his wife while in the evidence he claimed that he has himself talked with daughter and so there are contradictions. It is correct that there is difference of version as to whether the complainant himself had talked with his daughter or his wife told about the same. But this is not material as fact remains that the accused no.3 was indeed staying with couple at the hotel which is not disputed and it is also a fact that in records of Hotel Shangrila when the couple checked in, the accused no.3 had given her own address of the hostel at Aurangabad as a permanent address of accused no.1. This can be seen from Exhibit 22. Entry from the register of hotel Exhibit 23 shows that when the couple and accused no.3 rechecked in the same hotel on 13.12.1993 number of persons shown as residing are â3â. Thus, we do not attach much value to the contradictions. Fact remains that after reaching Aurangabad on 20.12.1993, the complainant Ompraksh filed the F.I.R. casting doubts on the relationship between accused nos. 1 and 3. Although, the complainant admitted in his cross examination that the accused no.3 had attended the marriage of the couple, that does not help the accused. Rather it indicates that accused no.3 who was studying at Aurangabad made it a point to even attend the marriage and on the couple coming to Aurangabad, she travelled about 117 Kms. to Manmad to receive the couple. This is unusual for a young girl especially in 1994. In any case, it indicates her excitement. Naturally, her interest was in accused no.1. She must be hardly knowing the victim at that time as the settled marriage was not even one month old. Thus, on record we have evidence of complainant, father of the victim, expressing doubts regarding the relationship of accused Nos. 1 and 3. We find the doubts not to be misplaced. Even if accused no.1 was intimately knowing accused no.3 and she had gone and received the couple and taken care of them while they were at Aurangabad, that would have been understandable provided it was not the case that she went on to also start residing with the couple even in the nights when they were at Aurangabad although she could have gone to her own hostel. In our view, even a real sister would give natural privacy to the couple when they have been just married and are on honeymoon and would not hang on in the nights to stay in such small room, where they do not have even three mattresses or three pillows for them. It is not a case that on a given evening it became late one night and the couple let the deemed sister stay. It is not understandable that deemed sister checked in with the couple who had come for honeymoon. The argument that it had become late when the couple and accused no.3 returned from outing in the evening of 17.12.1993 and so accused no.3 could not have gone back to the hostel has no substance. Rather in such situation, it would become responsibility of the couple to reach accused no.3 to her hostel which was working womens hostel and time would not have been a constraint. If accused no.1 could go out for a walk till 12.45 a.m. in the night as mentioned in the Accidental Death Report Exhibit 89 filed by him, there is no reason why they could not have reached the accused no.3 to her hostel. The conduct of accused nos. 1 and 3 in over all circumstances proved on record shows serious doubts regarding their intentions interse and against the victim.
23. Reference is made to the above evidence to record that everything was not honkydory as is tried to be said by the accused when they claimed that there was absolutely no motive. The motive can lie deep in the heart and mind of a person and external conduct before the offence taking place may or may not reveal the same. In the circumstances of the matter, factor of Accused No.1 having anger due to developments at the time of marriage in mind cannot be ruled out. His unusual proximity with accused no.3 constitutes another factor which shows that there was motive to do away with Shashibala.
24. In the night concerned, in the room there were only three persons namely accused no.1, his wife Shashibala and his deemed sister, accused no.3. It appears that the death of Shashibala came to light, around 4 a.m. of 18.12.1993. The evidence is that PW-7 Vijaysingh Rajput, the Receptionist and PW-8 Chhagan Rokade, the room boy were on duty at the concerned time. The evidence of these witnesses shows that Vijaysingh was present on the counter and room boy had just gone to the second floor and put on the boiler and came back and sat on the counter. Their evidence shows that around that time when they were talking, in about 10-20 minutes accused no.1 Bhupendra came down from 2nd floor and asked to open the main door. PW-7 Vijaysingh asked him where he was going. He said